One tricky area of international and national law is how to approach private military contractors. So-called PMSC, or Private Military and Security Companies are becoming a more and more common feature of international security operations. The suite of national and international law, however, has generally not kept pace with the increasingly frequent use of armed forces that are not government entities. This is a relatively new, post-cold war phenomenon that has come to the fore with the expansive use of PMSCs in American-led operations in Iraq and Afghanistan.
Into this mix is a UN bodyaffiliated with the Office of the High Commissioner for Human Rights, called theWorking Group on the Use of Mercenaries. The “group” as it were, is a panel of five independent international experts, led by Shaista *Shameem of Fiji. Today, the group concluded a two-week fact finding mission in the United States and released a set of recommendations. It found that significant progress has been made on regularizing accountability mechanisms for PMSCs through legislation enacted in January 2008 and an internal Department of Defense “Interim Final Rule” issued in January 2009. Still, the working group identified areas where the United States could improve its oversight of PMSCs.
Although the US authorities have put in place mechanisms to better monitor PMSCs,there is still very little information accessible to the public on the scope and type of contracts. The lack of transparency is particularly significant when companies subcontract to others. The Working Group would like to reiterate that the responsibility of the State to protect human rights does not stop with contracting or subcontracting. It is indeed the responsibility of the State to ensure that any contractor to which it outsources its functions, fully respects human rights, and, in cases of violations is prosecuted and held accountable.
The Working Group is greatly concerned that PSMCs contracted by US Intelligence agencies are not subject to scrutiny from the US Congress and Government, due to classified information. The Working Group believes the public should have the right to access information on the scope, type and value of those contracts. The Working Group hopes that the US Government will take the necessary steps to remove all obstacles to transparency and accountability on the intelligence activities contracted to PMSCs in order to ensure full respect for and protection of human rights and prevent any situation that may lead to impunity of contractors for violations of human rights.
To that end, the working group offered a few recommendations:
Congress should adopt legislation that comprehensively provides criminal jurisdiction over contractors and civilian employees, including those working for the intelligence agencies and ensure its effective implementation;
The Department of Justice (DOJ) should ensure prompt and effective investigation of any allegations of human rights violations committed by PMSCs and prosecute alleged perpetrators. For that purpose, the DOJ should strengthen its investigative resource capacity and appoint an independent prosecutor;
When contracting and sub-contracting, the US Government should ensure victims’ right to an effective remedy and ensure that victims have access to justice; The right to remedy should also include access to a fair administrative process to claim compensations;
DOJ should promptly make public statistical information on the status of these cases, disaggregated by the type, year, and country of alleged offence; investigations launched, prosecutions and penalties;
The US Government and Congress should press for further transparency and freedom of information and reduce the application of classified information as well as State secret privileges in Court, in particular regarding alleged human rights violations involving PMSCs;
The US Government should make available to the public specific information on the number of PMSCs operating under US contracts, the names of the companies, the number of personnel, weapons and vehicles as well as the activities for which they were contracted, within legitimate limitations such as national security and privacy.
The US Government should regularly release statistics on the number of private military and security contractors injured or killed while supporting US operations;
The US government should consider establishing a specific system of federal licensing of PMSCs and especially of their contracts for operations abroad. Such licensing should include obligatory training of personnel on norms of international humanitarian and human rights law, and require the verified absence of national and international criminal record among PMSCs employees;
The US Government should put in place a vetting procedure before awarding contracts. This would require an assessment of past performance, including steps taken to provide remedy, compensation to victims for past abuses and prevent further abuses. Otherwise, suspended or convicted companies and employees involved in human rights abuses should be banned.
Congress should launch an investigation on the use of PMSCs on rendition flights.
* UPDATE: A UN insider notes: “while the High Commissioner’s staff provides logistical support for the Working Group, it’s more correct to characterize them as a group of independent experts selected by the member countries of the UN Human Rights Council” Not “affiliated” with the OHCHR as I had originally written.